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Disturbing but unsurprising revelations about APSC PID investigation

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Dear Australian Public Service Commission,

On 10 February 2022, an article was printed in The Australian. The title of the article was Top judge warned of registrar overhaul.

According to the article:

a) “[Justice Greenwood] objected to plans to downgrade the classification that one existing registrar would be appointed to – a decision the court’s chief executive and senior officials attempted to blame on the Australian Public Service Commission.”

b) “Federal Court bureaucrats had circumvented the cap on the number of staff by hiring them at lower levels and using special agreements to increase their pay – by up to $50,000 – and their titles.”

c) On 18 October 2018 Justice Greenwood wrote in an email:

i. “Warwick tells me that there is a problem because the (APSC) has a veto on any SES appointments.”
ii. “To solve the problem, Warwick wants to downgrade the role from an SES position, avoid the APSC’s veto and appoint [Murray].”

d) “[Warwick] Soden had claimed that [Murray Belcher], a man who had been at the court for many years could not be given the original Senior Executive Service classification advertised because it would be vetoed by the APSC representative.”

e) Justice Greenwood noted that “Sia spoke to me briefly before she went on leave and apparently the (APSC) representative was concerned that [Murray Belcher] was not very forthcoming about the changes to the management system or otherwise he would make to improve the work of the court.”

f) Justice Greenwood noted “First, Warwick’s advice that the APSC has a veto on appointment is wrong.”

g) Justice Greenwood noted “The true position is that neither Warwick nor Sia want to appoint [Murray Belcher]. The so called ‘veto’ is a red herring to prevent [Murray Belcher] being awarded the position.”

h) Justice Greenwood noted that “The SES classification, you will find, will have been taken somewhere else in the organisation …”

The issues highlighted in the article appear to have been the subject of a PID investigation that Ms Kate McMullan of your office considered.

It appears that the following was recorded in Ms McMullan's report (https://www.righttoknow.org.au/request/r...

Findings

On the balance of probabilities, I find that this assertion about the Australian Public Service Commissioner’s representative is not substantiated. On the basis of materials provided by the FCSA including a selection report, I find that the outcome of the recruitment process was that Mr Belcher was found by the panel (including the Australian Public Service Commissioner’s representative on the selection panel) to be the preferred candidate for the advertised position. On the balance of probabilities, I find that no “veto power” was exercised or purported to be exercised by the Australian Public Service Commissioner’s representative. On the balance of probabilities I find that Mr Belcher was appointed to a[n] [Executive Level 2] position on the basis of a role review ...

In those circumstances, it is not clear whether or for what purpose Mr Soden may have made representations that the Australian Public Service Commissioner’s representative had exercised a “veto power”; however, in absence of a “veto power” being exercised or being purported to be exercised, any incorrect statement by Mr Soden (whether due to a misstatement on Mr Soden’s behalf, a misunderstanding on Justice Greenwood’s behalf, a miscommunication between the two, or for some other reason) about action taken by the Australian Public Service Commissioner’s representative would not in and of itself constitute disclosable conduct. On that basis, I make no further findings about any such comments that may have been made.

That is very concerning because it looks to me like Ms McMullan set out a series of conjectures and, on the basis of those conjectures, made "no further findings about any such comments that may have been made". It looks to me like Ms McMullan refused to properly engage in her role as investigator under the PID Act.

I certainly do not think that Justice Greenwood misunderstood anything based on what has been published in The Australian.

Under the FOI Act I would like access to:

a) any and all correspondence between Kerryn Vine-Camp and Kate McMullan for the purposes of the PID investigation Kate McMullan conducted;
b) any and all correspondence between Warwick Soden and Kate McMullan for the purposes of the PID investigation Kate McMullan conducted;
c) any and all correspondence between Justice Greenwood and Kate McMullan for the purposes of the PID investigation Kate McMullan conducted;
d) any and all documents exchanged between Kerryn Vine-Camp and Kate McMullan for the purposes of the PID investigation Kate McMullan conducted;
e) any and all documents exchanged between Warwick Soden and Kate McMullan for the purposes of the PID investigation Kate McMullan conducted;
f) any and all documents exchanged between Justice Greenwood and Kate McMullan for the purposes of the PID investigation Kate McMullan conducted.

Yours faithfully,

Marcus

FOI, Australian Public Service Commission

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OFFICIAL

Dear Marcus

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Information Act 1982 for access to documents held by the Commission.

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Regards,

 

FOI OFFICER

Legal Services

 

Australian Public Service Commission

Level 4, B Block, Treasury Building, Parkes Place West, PARKES ACT 2600
GPO Box 3176 CANBERRA ACT 2601

 

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